Trying Leviathan: The Nineteenth Century New York Court Case that Put the Whale on Trial and Challenged the Order of Nature

Natural History, March, 2008 by Laurence A. Marschall

Trying Leviathan: The Nineteenth Century New York Court Case that Put the Whale on Trial and Challenged the Order of Nature by D. Graham Burnett, Princeton University Press, 2007; $29.95

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There are many lessons to be learned from the 1818 trial of James Maurice v. Samuel Judd, not the least of which is that chutzpah--a Yiddish term for the sort of self-serving audacity often associated with New Yorkers--has a long and lively history in the Big Apple. Here's a brief summary of the case in question: On March 31, 1818, the New York State Legislature passed a law to ensure the quality offish oils, which were widely used in the tanning and preservation of leather at the time. The law called for a corps of inspectors to "seek out any parcels of fish oil" and to certify the amount of water, sediment, and pure oil each cask contained. Three months later, a Mr. Samuel Judd, owner of the New-York Spermaceti Oil & Candle Factory at 52 Broadway, bought three casks of "fish oil" that had not been "gauged, inspected, and branded, according to law." Inspector James Maurice, seeking the statutory twenty-five-dollar fine for each uninspected cask, thereupon brought the case before the New York Court of Common Pleas.

At the ensuing trial, Mr. Judd's crack defense team, with characteristic New York aplomb, did not deny that he had bought the uninspected oil. In all good faith, your honor--they argued--Mr. Judd believed the law simply did not apply in his case. For what he had purchased was spermaceti oil, obtained from whales. The whale, as was by then well known, breathed air, had warm blood, and nursed its live-borne young with milk. So was it a fish--traditionally defined as "an animal existing only in water"--or a mammal? If it wasn't a fish, how could its oil be fish oil?

The trial of Samuel Judd lasted three days, and the jury rendered its verdict after a mere fifteen minutes of deliberation, finding that before the law, at least, Mr. Judd was in the wrong. "A whale is a fish," wrote both the New-York Gazette and the Evening Post, as if the court had settled the matter. And so Maurice v. Judd earned its place in the annals of commercial chutzpah and judicial folly. Yet as Princeton historian D. Graham Burnett recounts it, the trial was also a forum for airing some of the major scientific issues of the time, chief among them the role of taxonomy in understanding the order of nature.

Although no one today considers the whale a fish, in the early 1800s Linnaean classification was a relatively new mode of thinking, regarded, at least by the general public, as an exercise in scholastic nit-picking. In the courtroom, physician and naturalist Dr. Samuel Latham Mitchill, chief witness for Judd's defense, presented the Linnaean argument from morphology: whales breathe air and have lungs, not gills; they have four-chambered hearts, like horses but unlike fish; their fins contain bones that are exact analogs of the hands and arms of apes and people.

Yet William Sampson, the lead prosecutor, challenged Mitchill at every turn, using arguments that have echoes in recent debates about Darwinian evolution. Was it not true, Sampson asked, that there was wide disagreement among scholars as to exactly how various animals should be classified? And what were common folk to make of the unlikely associations Linnaean taxonomy called upon them to make? "Now, is not man strangely mated or matched," Sampson mused, "when the whale and the porpoise are his second cousins, and the monkey and the bat his germans [close relations]? Other gentlemen may choose their company, I am determined to cut the connection."

Maurice v. Judd called upon the testimony of merchants, manufacturers, and whalemen to give their opinions on the fishiness of whales. Though Burnett's gloss on the testimony bristles with footnotes and academic references, his perspective on the intellectual and social climate of early-nineteenth-century America makes fascinating reading. The issues raised in Maurice v. Judd have surfaced again and again, right up to present-day battles over the teaching of intelligent design in public schools.

LAURENCE A. MARSCHALL, author of The Supernova Story, is W.K.T. Sahm Professor of Physics at Gettysburg College in Pennsylvania, and director of Project CLEA, which produces widely used simulation software for education in astronomy.